Defending Donald J Trump

A Legal Strategy Based on Bluster and Bullshit

The former president of the United States was arraigned in Washington DC today, following grand jury indictments based on his actions intended to overturn the 2020 presidential election.

Note that I say “actions.” Somehow, a whole bunch of wimpy wannabe observers want us to believe that Trump’s legal troubles are based on a prosecutorial misconception of the first amendment.

While it’s true that the first amendment allows you to speak your mind, it does not mean there are no consequences for what you say or do. The “do” word is emphasized because an honest examination of the charging document goes so far as to say Trump's right to lie is protected speech.

Trump is now being forced to face the consequences of his fraudulent actions. In other words, the man didn’t just say stuff, he actively sought to do stuff designed to suit his desire to stay in office.

• There is no first amendment right to conspire to obstruct an official proceeding. 

• There is no first amendment right to conspire to submit fraudulent slates of electors. 

• There sure is no first amendment right to incite a frenzied mob to disrupt the certification of an election.

Let’s pause here to look at some numbers, as they’ll give context relating to the character of this defendant and point to his thinking. Look at these while trying real hard to not assume they’re about Republican candidate and former president Donald J Trump.

• 2 impeachments

• A rape

• 26 sexual assault allegations

• 3 arrests

• 78 state and federal felony indictments

• One RICO investigation, soon to emerge 

• 30,725 lies documented by the Washington Post.

• 86 witnesses for the prosecution attesting to criminal conspiracy/activity, none of whom are Democrats.

This person sounds like a real sleaze, amiright? The ex-presidents defenders aren’t trying to paint him as Jesus re-incarnated; they’re trying to make this prosecution into a “free speech argument.” 

Here’s Joan McCarter at Daily Kos with the goods:

• “Apparently it is now a crime to make statements challenging election results if a prosecutor decides those statements aren’t true,” Sen. Marco Rubio asserted, knowing full well that this is not about Trump’s statements, but about his actions.

• Bogus “free speech” arguments are a tried-and-true Republican favorite, and Trump’s legal team is no exception. “[O]ur focus is on the fact that this is an attack on free speech, and political advocacy,” said Trump lawyer John Lauro on CNN. “And there’s nothing that’s more protected, under the First Amendment, than political speech.” (Lauro might want to do a quick review of how that defense has been working for Jan. 6 defendants, including the Proud Boys.)

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There is another misconception making the rounds in establishment media, which started on Fox News, was repeated in the National Review and ended up being echoed in the Washington Post, New York Times, Axios,  and CNN. This sort of crapola –and not explaining the origins of this legal concern– is why people have every right to distrust the media.

Judd Legum at Popular Information promptly called out this absurdity:

• Trump's lead attorney on the case, John Lauro, immediately appeared on Fox News and laid out his defense strategy. Lauro said that special prosecutor Jack Smith and his associates would be required to "prove beyond a reasonable doubt that Donald Trump believed that these allegations were false." In other words, Trump is not a criminal; he's just delusional.  

Once again, what Donald Trump believed (like what he said) is not the basis for the indictment. It’s what he did. And he did a lot.

• In an interview with Popular Information, Marc Elias, one of the nation's most prolific and experienced election attorneys, explained how the law works with an analogy:

• I walk into a bank, and I think they are wrongfully holding my money. I think my balance is $5,000, and they think my balance is zero. And I genuinely believe that I am owed $5,000. That doesn't excuse me from robbing the bank. I can't pull out a gun and take the money. Particularly with the fake electors scheme, even if you believed that you won, you were not entitled to have people submit fake forms on January 6.

A defense based on explaining what was going on in Trump’s head only speaks to motive. Guess what? 

• So if Smith does not need to prove that Trump knew he was lying, why does he spend so much time in the indictment documenting that Trump knowingly lied? Elias explained that, in a criminal trial, the government "does not need to prove motive." The jury, in fact, will receive an instruction stating that the government does not need to establish a motive for the defendant's alleged crimes. Nevertheless, "the jury wants to hear a motive, so the government always tries to prove motive." In this case, Smith is attempting to establish that Trump was motivated by a corrupt desire to remain in power even though he knew he lost. 

There’s one final defense making the rounds, namely the “my lawyer made me do it” defense. I’m not sure how they can say this, given that five of the unindicted co-conspirators *(they will be eventually indicted) were Trump’s lawyers.

Aaron Blake at the Washington Post:

• Those lawyers are also set to figure prominently in a key defense Trump will apparently offer: that he was relying on “advice of counsel” in his brazen efforts to overturn the election. How could it be corrupt if the nonlawyer president was told all this was kosher by the actual lawyers?

• But some key former Trump allies are now stepping forward to call that into question. And the indictment also takes care to undermine this defense before it’s ever offered.

• Former attorney general William P. Barr and a former top aide to former vice president Mike Pence both offered a contrasting spin on the “advice of counsel” defense Wednesday. They suggested that it wasn’t that Trump was a victim of his lawyers, but rather that he sought out lawyers who would tell him what he wanted to hear and assist in his plot.

I’m figuring sometime not long after I publish this post, the indictments coming out of Georgia will drop. My guess is that the feds and state prosecutors got together and agreed upon an order of arrangements most convenient for each side.

Even DJT agrees:

News Clips Atop My Inbox

The WhatAboutHunter Defense Rests…

Hunter Biden business associate testifies he has no knowledge of wrongdoing by Joe Biden  - Via NBC News…  Republicans released a 141-page transcript of Devon Archer's testimony on the same day former President Donald Trump is set to be arraigned in Washington.

• “Once again, Committee Republicans’ priority investigation into President Biden has failed to produce any evidence of wrongdoing by President Biden. On Monday, Devon Archer, Hunter Biden’s former business associate, confirmed in a transcribed interview that President Biden was never involved in Hunter’s business dealings, never profited from such dealings, and never took official action in relation to these business dealings,” Raskin, the top Democrat on the Oversight panel, said in a statement.

• “The transcript released today shows the extent to which Congressional Republicans are willing to distort, twist, and manipulate the facts presented by their own witness just to keep fueling the far-right media’s obsession with fabricating wrongdoing by President Biden in a desperate effort to distract from Donald Trump’s third indictment and the overwhelming evidence of his persistent efforts to undermine American democracy.”

NH Republicans size up DeSantis, as he offers harsh rhetoric in primary campaign Via New Hampshire Public Radio.

• Throughout his trip to New Hampshire, he appeared bent on demonstrating that no candidate talks tougher. He promised that, under his presidency, Mexican drug cartels would be “shot stone cold dead,” and vowed that when it comes to federal bureaucrats, “we are going to start slitting throats on Day One.”

• The crowd that listened to DeSantis at the Rye event, a barbeque, hosted by former Massachusetts Sen. Scott Brown, was heavily Republican. And, by and large, DeSantis’ message went down fine. But not everyone liked the word choice, particularly the bit about slitting throats.

• “If I was in charge of his PR, I would have said, ‘Don’t use that terminology,’ ” said Norm Olsen, a GOP primary voter from Portsmouth who describes himself as a “Sununu Republican.”